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2 Esp. Dig. 452, 453.

recovered against the master, the servant is liable over to him for his own misconduct ; and if the plaintiff fails against the master, he may sue the servant, so that either way he is interested.

But where an action is by the master for an injury done to the servant, with a per quod serv. amisit, there the servant may be an evidence (though the case of Dunsley v. Westbrown, 1 Strà. 414, is contra) from the authority of the following cases.

The servant beaten was in this case allowed to be a gond witness on an action brought by the master.

So in an action for defendant's dog having bit the plaintiff's apprentice, per quod servit. amisit, the apprentice was admitted as a witness.

So where the action was for debauching the plaintiff's daughter, the daughter was examined as a witness.

For, in these cases, the servant is in no way interested in the event, the action being given to the master, not for the injury but for the consequences of the injury.

Duel v. Harding, i Stra 595.

Lewis v. Fogg, 2 Stra. 944.

Cook v. Watham, 2 Stra. 1054.

2 Esp. Dig. 453.

TITLE CXLVII.

TROVER.

T'ROVER is a special action upon the case, which lies where one man obtains possession of the personal property of another, and wrongfully converts the same to his own use. (1)

1. Of the nature and foundation of this action.

(1) This action of trover and conversion was, in its original, an ac. tion of trespass upon the case, for recovery of damages against such person as had found another's goods, and refused to deliver them on demand, but converted them to his own use ; from which finding and converting it is called an action of trover and conversion. The freedom of this action from wager of law, and the less degree of certainty requisite in describing the goods, gave it so considerable an advantage over the action of detinue, that by a fiction of law, actions of trover were at length permitted to be brought against any man, who had in his possession, by any means whatsoever, the personal goods of another, and sold them or used them without the consent of the owner, or refused to deliver them when de. manded. The injury lies in the conversion : for any man may take the goods of another into possession, if he finds them ; but no finder is allowed to acquire a property therein, unless the owner be unknown.

The fact of the finding, or trover, is therefore now totally im. material : for the plaintiff needs only to suggest (as words of form) that he lost such goods, and that the ¡defendant found them : and if he proves that the goods are his property, and that the defendant had them in his possession, it is sufficient. But a conversion must be fully proved ; and then in this action the plaintiff shall recover damages, equal to the value of the thing converted, but not the thing itself; which nothing will recover but an action of cetinue or replevin. 3 Bl. Com. 152, 153.

2. Of conversion.
3. The declaration.
4. The plea.

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I. Of the nature and foundation of ihis action.

In order to maintain an action of trover, it is necessary that it should appear,

1. That the plaintiff had either an absolute or a spe. cial property in the goods which are the subject of the action, at the time when they came into the possession of the defendant who has converted them :

2. That the plaintiff had also the right of possession in the goods :

3. That the subject matter of the action is personal goods :

4. That the defendant has been guilty of a wrongful conversion.

1. It must appear that the plaintiff had a property, either absolute or special, in the goods which are the subject of the action, at the time when they came into the possession of the defendant who converted them; but it is not necessary to shew that the plaintiff had both an absolute and special property, either one or the other is sufficient. (2)

2. The plaintiff inust not only have a right of proper. ty but a right of possession also, and unless both these rights concur, the action will not lie. Hence, where a person leased a house, with the furniture therein, to another for a certain time, and during the term, the furniture was taken in execution by the sheriff, at the suit of J S, against a person to whom the furniture for

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Ibid. 1147.

(?) Absolute property is where ohe, having the possession of goods, has also the exclusive right to enjoy them, and which can only be defeated by some act of his own. A special property is wliere he who has the possession of goods, holds them subject to the claims of other persons. Selw. 1142. 1145.

merly belonged ; it was holden, that the landlord could not maintain trover against the sheriff for the value of the furniture, because the plaintiff had not the right of possession during the demise ; the tenant's property and interest did not determine by the sheriff's trespass; the tenant might have maintained trespass against the wrongdoer, and recovered damages.

But the right of possession is sufficient, without have the ing had actual possession. Hence, where, in trover, the plaintiff, as executor, declared upon the possession of his testator, it was holden to be sufficient, because the personal property of the testator was vested in the executor, and no other person having a right to the possession, the property drew after it the possession in law.

3. The subject matter of this action is confined to per glid sonal goods. Hence, trover will not lie for things fixed to the freehold.

4. It must appear that the plaintiff has been guilly of a wrongful conversion.

And the wrongful conversion by the defendant is con- thiz sidered as the gist of the action.

Ibid. 1148.

Ibid. 1150.

II. Of conversion.

As this action equally lies where the taking has been tortious, or where the defendant has lawfully obtained 2 Esp. possession of the plaintiff's goods and afterwards converted them ; what shall be evidence of a conversion, seems in these two cases to be different.

For where an actual taking of the goods in question is liid. given in evidence, that is sufficient without shewing a Sid. 26.4. demand and refusal, for it is an actual conversion ; but Clayt. 112. when defendant comes to the goods by finding, delivery, or bailment for example, there an actual demand and refusal must be shewn, in order to establish a conversion, · unless an actual conversion can be proved, in which case

it is not necessary to prove a demand.

Cites Bruen v. Roe,

Beckwith v. Elvey,

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For a demand and refusal in such case is sufficient evidence of a conversion.

But it is not of itself a conversion, for if the jury find only a special verdict, viz. that there was a demand and refusal, the court cannot adjudge it a conversion.

For a refusal on demand, may be justifiable and lawful under particular circumstances.

As if a person finds my goods, and I demand them, and he answers, that he knows not whether I am the true owner or not, and therefore refuses to deliver them, this is not to be deemed a conversion to his own use, as he keeps them for the owner.

So where a person has a lien, he may lawfully refuse to deliver the things when demanded, till satisfied to the amount of his lien.

As if an innkeeper refuses to deliver an horse, standing at his inn, till paid for keeping.

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III. The declaration.

This is a transitory action, and the venue may be laid in any county.

The declaration states, that the plaintiff was lawfully possessed of the goods in question, as of his proper goods and chattles, and that being so possessed, he casually lost them, and that they came to the hands and possession of the defendant, by finding, who afterwards converted them to his own use.

This is the substance of the declaration, in common cases. Where the action is brought by an executor, administrator, or the assignees of a bankrupt, the character in which the party sues mușt of course appear on the face of the declaration.

Care must be taken to state the possession to be in the person to whom the property belongs

In trover by husband and wife, the declaration ought not to allege the possession in them both, nor state the

Ibid. 1153.

Ibid.

Ibid. 1159.

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